Citation Nr: 0735447
Decision Date: 11/09/07 Archive Date: 11/26/07
DOCKET NO. 05-18 325 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUES
1. Entitlement to service connection for residuals of a left
ankle injury.
2. Entitlement to service connection for headaches.
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
David S. Nelson, Counsel
INTRODUCTION
The veteran had active service from February 1962 to April
1965.
These matters are before the Board of Veterans' Appeals
(Board) on appeal from a May 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio. Jurisdiction over this case was transferred
to the RO in Boston, Massachusetts.
The veteran appeared before the undersigned Veterans Law
Judge in June 2006 and delivered sworn testimony at the RO.
A March 2007 RO decision denied entitlement to service
connection for PTSD. The veteran has not expressed
disagreement with the March 2007 RO decision and this issue
is not before the Board.
FINDING OF FACT
The competent medical evidence of record does not demonstrate
that the veteran has a left ankle or headaches disability
related to service.
CONCLUSIONS OF LAW
1. A left ankle disability was not incurred in or aggravated
by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West
2002 & Supp. 2005); 38 C.F.R. § 3.303 (2007).
2. A headaches disability was not incurred in or aggravated
by active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131,
5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.307,
3.309 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), in part,
describes VA's duties to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a). The VCAA applies in this case.
Duty to Notify
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). The VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in his or her
possession that pertains to the claim. 38 C.F.R.
§ 3.159(b)(1). The VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction decision on a claim. Pelegrini v. Principi, 18
Vet. App. 112 (2004).
By correspondence dated in November 2003, the veteran was
informed of the evidence and information necessary to
substantiate the claims, the information required to enable
VA to obtain evidence in support of the claims, the
assistance that VA would provide to obtain evidence and
information in support of the claims, and the evidence that
he should submit if he did not desire VA to obtain such
evidence on his behalf. The VCAA letter informed the veteran
that he should submit any medical evidence pertinent to his
claim. VCAA notice was provided to the appellant prior to
the initial adjudication. Pelegrini. Because the claim is
being denied in this case, the matters of notice regarding
the assignment of a disability rating and effective date for
such award are not at issue. Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006).
Duty to Assist
The veteran's service medical records are associated with the
claims file, as are VA and private treatment records. The
veteran has undergone VA examinations for the purpose of
addressing the matters presented by this appeal. The veteran
has not referenced any other pertinent, obtainable evidence
that remains outstanding. The Board finds that VA's duties
to notify and assist the veteran are met. Accordingly, the
Board will address the merits of the claims.
Legal criteria
Service connection is warranted if it is shown that a veteran
has a disability resulting from an injury or a disease
contracted in active service, or for aggravation of a
preexisting injury or disease in active military service. 38
U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service
incurrence for certain chronic diseases will be presumed if
they become manifest to a compensable degree within the year
after service. 38 C.F.R. §§ 3.307, 3.309(a). Service
connection may also be granted for any disease diagnosed
after discharge, when the evidence, including that pertinent
to service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
Analysis
An October 1962 service medical record reveals that the
veteran fell and injured his left ankle and had complaints of
pain and swelling. X-rays dated in October 1962 revealed
soft tissue swelling over the lateral malleolus with no
fracture observed. Following the removal of a cast, a
December 1962 X-ray of the left ankle was negative. The
remaining service medical records contain no complaints
related to the left ankle, and no left ankle disability was
noted on the January 1965 and March 1965 service separation
examinations.
VA records dated in March 2004 and July 2004 reveal that the
veteran had multiple right ankle injuries; the records do not
include any pertinent findings related to the left ankle. A
March 2006 VA examination for compensation purposes included
an impression of history of mild lateral ligament sprain of
the left ankle.
Although the veteran's service medical records contain
complaints related to the left ankle, there is no indication
of a chronic left ankle disability during service, as none
was noted on X-rays or at the time of the veteran's January
1965 and March 1965 service separation examinations.
Further, the record contains no medical evidence relating a
left ankle disability to the veteran's service.
As for the veteran's claim that he has a headaches disability
related to service, the Board notes that the service medical
records do reveal that the veteran had a head injury during
service. There is no indication, however, that he
complained of headaches. The veteran's head and neurologic
system were noted as normal on his January 1965 and March
1965 service separation examinations. The veteran
specifically denied that he had frequent or severe headaches
on the Medical History portion of the January 1965 and March
1965 separation examinations.
At a March 2006 VA neurological examination, the veteran
complained of constant headaches. Following examination that
noted no neurological abnormality, the diagnosis was status
post head trauma. The examiner commented as follows:
Review of [the veteran's claims file]
shows that he did have head injury in the
military but the record clearly states
that he [had] no loss of consciousness in
those incidents. He was never followed
for headaches according to the military
record so he has headaches by history.
Even assuming that the veteran has a current disability due
to headaches, the evidence of record fails to show that he
experienced headaches during service or within a year of
discharge from service, or that any current headache
disability is related to service. In short, service
connection for headaches is not warranted.
The Board does not doubt the sincerity of the veteran's
belief regarding his left ankle and headaches disabilities,
and the veteran's statements and June 2006 Board hearing
testimony have been reviewed. The veteran is not competent,
however, to offer evidence which requires medical knowledge,
such as the question of whether a chronic disability is
currently present or a determination of etiology. Espiritu
v. Derwinski, 2 Vet. App. 492 (1992).
In reviewing the foregoing, the Board has been cognizant of
the "benefit of the doubt" rule, but there is not such an
approximate balance of the positive evidence and the negative
evidence to permit a favorable determination. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
The Board notes that at his March 2006 VA examination and
during his June 2006 Board hearing the veteran discussed
circumstances surrounding his right ankle. Any claim for
entitlement to service connection for right ankle disability
should be initiated with the RO.
ORDER
Service connection for a left ankle disability is denied.
Service connection for a headaches disability is denied.
____________________________________________
CHARLES E. HOGEBOOM
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs